Lim v Randwick City Council

[2024] NSWLEC 1497

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lim v Randwick City Council [2024] NSWLEC 1497

Hearing dates:

Conciliation conference on 15 August 2024

Date of orders:

15 August 2024

Decision date:

15 August 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to rely on the Amended Application.

(2) The appeal is upheld.

(3) Development Consent No. DA/236/2019/A for alterations and additions to an existing garage, including the construction of a first floor over the garage at 119 Garden Street, Maroubra, is modified in accordance with the terms in Annexure A to provide for alterations to the rear yard and to the studio/study, including provision of a toilet on the first floor.

(4) Development consent DA/236/2019/A as modified by the Court is Annexure B.

Catchwords:

APPEAL – modification application – modification of a development consent granted by the Court – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 8.9

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021 ss 100, 113

Cases Cited:

Hoang v Randwick City Council [2020] NSWLEC 1108

Category:

Principal judgment

Parties:

Brandon Lim (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
V McGrath (Solicitor) (Respondent)

Solicitors:
Piper Alderman (Applicant)
Randwick City Council (Respondent)

File Number(s):

2023/434256

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns an application to modify a consent for alterations and additions to an existing garage including a first floor studio above the garage, at 119 Garden Street, Maroubra. The modification application was lodged on 15 March 2023 and sought to make changes to the floor layout of the first floor studio, change the location of the access stairs, increase the size of the garage structure and decrease setbacks, change the roof form, introduce a bathroom in the first floor studio, and change window locations. The modification application was made under s 4.56 of the Environmental Planning and Assessment Act 1979 (EPA Act), as the original development consent was granted by the Court in Hoang v Randwick City Council [2020] NSWLEC 1108. Following the expiry of the period after which a modification application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.9 of the EPA Act. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.56(1) of the EPA Act. The final orders in this appeal, outlined in [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 August 2024. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement reflects that which was signed on 13 August 2024, following the Council’s approval of an application for an amendment to the modification application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The modification application, as amended, seeks the following changes to the development consent:

• Removal of north-western bathroom;

• New eastern windows;

• Internal alterations to the workshop and store room, removal of rain water tank and inclusion of wardrobes;

• New water closet on eastern wall;

• Provision of cross-gable roof to accommodate higher ceiling within the western eastern end of studio garage;

• New BBQ area on southern boundary of the existing patio/private open space between the main dwelling and studio garage; and

• Prospective use of the existing building concrete garage columns.

4. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.56(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement, that sets out the jurisdictional pre-requisites that must be satisfied before the Court can exercise its functions under s 34(3). Based on the Jurisdictional Statement, the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, I have considered such of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application, consistent with s 4.56(1A) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. I reach this conclusion as the amendments concern only the layout of the development and the development remains of the same essence, being a garage with first floor studio, with only a few quantitative changes including a minor reduction in floor space and setbacks.

6. The modification application was notified by the respondent for 14 days ending on 5 April 2023 in accordance with s 4.56(1)(b) of the EPA Act. In response to the notification of the application, no submissions were received.

7. Section 100(3)(a) of the EPA Regulation 2021 requires a BASIX certificate if the modification application relates to BASIX development. The parties agree that, for the purpose of s 100(3)(a), the development the subject of the consent is not BASIX development.

8. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

9. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.56(1A) and 4.15(1) of the EPA Act.

The Court notes that:

10. Randwick City Council, as the relevant consent authority, has agreed under s 113(1) of the Environmental Planning and Assessment Regulation 2021 to the applicant amending Modification Application No. DA/236/2019/A in accordance with the plans listed in Annexure A (the Amended Application).

11. The Court orders that:

1. Leave is granted to the applicant to rely on the Amended Application.

2. The appeal is upheld.

3. Development Consent No. DA/236/2019/A for alterations and additions to an existing garage, including the construction of a first floor over the garage at 119 Garden Street, Maroubra, is modified in accordance with the terms in Annexure A to provide for alterations to the rear yard and to the studio/study, including provision of a toilet on the first floor.

4. Development consent DA/236/2019/A as modified by the Court is Annexure B.

J Gray

Commissioner of the Court

434256.23 Annexure A

434256.23 Annexure B

**********

Decision last updated: 15 August 2024